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The Environmental Review Tribunal has dismissed another anti-wind power appeal, holding that evidence to substantiate claims of “serious and irreversible harm to animal life” must be site-specific, species-specific, and quantifiable. The Tribunal released its decision in Bain v. Director, Ministry of the Environment, 2014 WL 888126 on February 27, 2014, allowing the five-wind turbine Emestown Windpark in Lennox and Addington County to proceed.

The appellants had based their argument on the second branch of the appeals test, arguing that the project would cause serious and irreversible harm to turtles, birds and cattle. Despite the fact that the Tribunal preferred the evidence of the appellants’ turtle expert over that of the MOE and the approval holder (and found the approval holder’s turtle survey to be inadequate), the appellants failed to satisfy the onus upon them by failing to prove species, location and quantifiable mortalities.

First, the neighbours testified that they had observed threatened species (musk turtles and Blanding’s turtles), and species of special concern (snapping turtles) on their own properties and other lands bordering the project site (in a past decision, currently pending appeal, the ERT had previously held that the presence of the threatened Blanding’s turtle on a wind farm site was sufficient to quash the project’s approval). The Tribunal also accepted that the site contained turtle habitat. However, neighbours were only able to give limited evidence regarding the presence of turtles they had personally seen on the site itself (since it was privately owned). As a result, the Tribunal found that the site was likely used by snapping turtles (which were much more common and most frequently seen by witnesses), but that there was insufficient evidence to make a finding that musk and Blanding’s turtles were present on the project site.

Second, the appellants’ turtle-expert failed to back up his views that the project would cause serious and irreversible harm to turtles by degrading habitat, increasing opportunities for poaching and predation, and increasing road mortalities with studies or any quantifiable data. After noting the absence of any population estimates or mortality figures, the Tribunal ruled that “general concern” over harm that “could occur,” even by an expert, is not sufficient to meet the serious and irreversible harm part of the test.

Similarly with respect to birds, The Tribunal held that evidence that neighbours had observed purple martin and loggerhead strike on their own properties nearby the site was not sufficient to indicate that the site itself was also used by those birds.

And lastly, the evidence that stray voltage such as that that might emanate from the base of a turbine or power lines can disrupt dairy cattle was not sufficient to demonstrate that the project would cause serious and irreversible harm to the cattle in the vicinity of the project when the cattle nearby were all beef cattle.

Another wind appeal dismissed; another lesson learned. Appellants of renewable energy permits must be prepared to provide evidence that speaks directly to what species are found where (which may be difficult, as in this case, where the approval holder’s studies were flawed), and what the impact of the project will be on any given species in terms of mortality rates.

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